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Beatriz Castillo, Professor of Ecclesiastical Law, University of Navarra, Spain

The issue of the Islamic headscarf

Sat, 03 Jul 2010 08:45:44 +0000 Published in Navarra Newspaper

Few issues have become as topical in recent times as the so-called "Islamic veil issue". In our country it has once again regained prominence as a result of the approval, in the Upper House, of a motion by the Popular Party that prohibits the use of the burqa in public spaces.

The well-known conflict of the "Islamic headscarf" cannot be considered as a trivial issue, taking into account the historical importance of symbols in human culture. Thus, although the veil is, a priori, for Muslim women, a symbol of modesty and religious identity, not a few social sectors consider it a sign of a religious fundamentalism far removed from Western values.

The conflict is especially significant in Europe, where, on occasions, Muslim social minorities are not integrated in the country where they reside, but occupy marginal sectors. We cannot forget that we are facing a growing presence of Islamic symbols in a society that is mostly Christian from a religious point of view and mostly secular from a social point of view.

There are currently two legislative trends on this issue: that represented by France, which aims at assimilation (that cultural minorities adapt to the tradition of the country in which they live), or that of cultural pluralism in the United Kingdom, which respects minorities, within certain limits. The danger of the first trend is that it does not respect the Muslim population's right to religious freedom. In turn, the so-called pluralism can paradoxically lead to a lack of integration of this religious minority within the majority society.

It seems difficult, likewise, to draw an accurate conclusion from the Koran on this question. Its prescriptions are so diverse that, on the internship, it is the different Muslim states that specify in one way or another the duty to wear one or another garment. The variety of clothing ranges from the hijab (which covers the head but not the face) to the controversial burqa (which covers the entire body and leaves only a grille at eye level that allows a frontal view), practically confined to Afghanistan.

In our country, the conflict is between the fundamental right to religious freedom (guaranteed in art. 16 of the Constitution) and the non-confessional nature of the State. The 1980 Religious Freedom Law, which develops the constitutional precept, contemplates the freedom to freely manifest religious beliefs. There is no doubt that clothing is part of this external projection of the right to religious freedom. The problem seems to reside, not so much in its religious dimension, but in the social connotations that its use entails. Thus, there are quite a few who consider that the hijab (and, needless to say, the burqa) entails discrimination and an undermining of the dignity of women.

However, the non-denominational nature of the State cannot be understood, either, as an instrument to limit a fundamental right (such as that of religious freedom), but rather, to enable the exercise of this right by all citizens under conditions of equality.

With regard to the conflicts that are most commonly generated, we can distinguish three areas that stand out above others: educational, labor and administrative.

Perhaps the most difficult to solve is the first one. As it is well known, the school authorities enjoy great autonomy, and it is difficult to find a compromise between the Muslim students' demands and the rules and regulations on school dress and habits.

In the workplace, the difficulty lies in reconciling the religious freedom of the employee and that of the business, according to which the employer can make it compulsory for his employees to wear a particular type of clothing.

Finally, with regard to the Administration, there have been tensions related to the photograph displayed on official documents, since rules and regulations prohibits citizens from wearing "clothing that prevents the identification of the person".

All of the above only goes to show that the legal question of the Islamic veil is by no means a "peaceful" topic , neither in the legislative nor in the judicial sphere, but rather, quite the contrary. It seems necessary, therefore, to avoid a generalist solution that does not take into account the circumstances of each case. It is already seen, for example, that the question of the veil in schools causes some controversy in Madrid or Catalonia, but not in Melilla, where there are schools with an overwhelming Muslim majority. For this reason, and at least until now, the jurisprudence of all the countries of our environment has tried to adopt an "ad casum" solution.

The course of events will surely bring new challenges to be faced by the competent institutions.